United States v. Alex Tejeda ( 2019 )

FILED
NOT FOR PUBLICATION
AUG 13 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30173
Plaintiff-Appellee, DC No. CR 15-0066 TMB
v.
MEMORANDUM*
ALEX JOSE TEJEDA,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Argued and Submitted June 12, 2019
Anchorage, Alaska
Before: TASHIMA, W. FLETCHER, and BERZON, Circuit Judges.
Defendant-Appellant Alex Jose Tejeda (“Tejeda”) appeals his convictions
following a jury trial for conspiring to distribute and possess with intent to
distribute methamphetamine, cocaine, and heroin in violation of 21 U.S.C. §§ 846,
841(a)(1), (b)(1)(A), and (b)(1)(C) (“Count One”); possessing with intent to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
distribute methamphetamine, cocaine, and heroin, and fifty grams or more of
methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and (b)(1)(C)
(“Count Two”); possessing with intent to distribute methamphetamine in violation
of 21 U.S.C. § 841(a)(1), (b)(1)(B), and (b)(1)(C) (“Count Four”); and distribution
of heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (“Count Five”). He
also appeals the district court’s denial of his motion for a new trial and the district
court’s imposition of special conditions of supervised release, and requests
correction of the written judgment regarding Count Five of his conviction. We
have jurisdiction under 28 U.S.C. § 1291. For the reasons that follow, we affirm
Tejeda’s convictions as to Counts One, Four, and Five, but reverse as to Count
Two. Additionally, we vacate the imposition of the three special conditions at
sentencing and remand for resentencing in light of the reversal of Tejeda’s
conviction as to Count Two. We also direct the district court to correct the form of
judgment as to Count Five on remand.
1. The use of the language on the special verdict form for Count Two
was plain error, and that error affected Tejeda’s substantial rights.1 The required
mens rea for possession with intent to distribute is “knowingly.” See United States
1
Because Tejeda did not object below to the language in the special
verdict form, we review for plain error. See United States v. Olano, 507 U.S. 725,
730–36 (1993).
2
v. Mancuso, 718 F.3d 780, 791 n.6 (9th Cir. 2013). The special verdict form,
however, stated that the jury could convict if it found possession to be “reasonably
foreseeable” to Tejeda. This was plain error.
This error prejudiced Tejeda’s substantial rights. First, the verdict form
permitted the jury to convict on a theory that was legally impermissible. See
United States v. Fulbright, 105 F.3d 443, 451 (9th Cir. 1997), overruled on other
grounds by United States v. Heredia, 483 F.3d 913 (9th Cir. 2007) (en banc);
United States v. Barona, 56 F.3d 1087, 1098 (9th Cir. 1995). The fact that the
court provided accurate jury instructions does not cure that defect, as ultimately the
incorrect verdict form was right before the jury and was, presumably, the last thing
the jury read before entering its verdict. Second, Tejeda’s conviction for Count
Two rested on the jury’s determination that Tejeda knew that he possessed certain
controlled substances found in the trunk of the car that he was driving. But Tejeda
was not the owner of the car, and the drugs were hidden in the trunk in such a way
that Tejeda may not have known they were there. Thus, it is entirely possible that
some or all members of the jury chose to convict Tejeda on the legally
impermissible basis that he should have “reasonably foreseen,” even if he did not
know, that the drugs were in the trunk. Allowing the conviction to stand would be
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a “miscarriage of justice.” United States v. Fuchs, 218 F.3d 957, 963 (9th Cir.
2000).
Accordingly, the use of the special verdict form as to Count Two was plain
error. We reverse the conviction as to Count Two, vacate Tejeda’s sentence and
remand to the district court for further proceedings in light of this decision.2 See
United States v. Davis, 854 F.3d 601, 606 (9th Cir. 2017) (“When a defendant is
sentenced on multiple counts and one of them is later vacated on appeal, the
sentencing package comes unbundled. Under these circumstances, vacating the
sentence is required in order to allow the district court to put together a new
package reflecting its considered judgment as to the punishment the defendant
deserves for the crimes of which he remains convicted.” (citations, internal
quotation marks, and alterations omitted)); United States v. Bain, 925 F.3d 1172,
1179–80 (9th Cir. 2019).
2. Tejeda’s challenge to the district court’s admission of a combination
of lay and expert testimony by certain police officers fails. Even assuming that the
district court erred in allowing impermissible dual role testimony, any error was
harmless. See United States v. Seschillie, 310 F.3d 1208, 1214 (9th Cir. 2002).
2
In doing so, we do not foreclose the possibility that the government
may elect to retry Tejeda on Count Two. The government may also decline to do
so. Under either of these scenarios, Tejeda will have to be resentenced.
4
Excluding the testimony challenged by Tejeda, there was more than enough
inculpatory evidence on which the jury could convict, including Tejeda’s co-
conspirators’ statements and the drugs found near Tejeda’s person. The testimony
was also cumulative of other testimony by government witnesses. See Territory of
Guam v. Ignacio, 10 F.3d 608, 614 (9th Cir. 1993). Thus, it is “more probable than
not that the error did not materially affect the verdict.”3 Seschillie, 310 F.3d at
1214 (quoting United States v. Morales, 108 F.3d 1031, 1040 (9th Cir. 1997) (en
banc)..
3. Tejeda’s arguments that the district court committed plain error in
failing to give a multiple conspiracies instruction and a specific unanimity
instruction regarding Count One also fail. No multiple conspiracies instruction
was required because Tejeda stood trial alone. See United States v. Chen Chiang
Liu, 631 F.3d 993, 1000 (9th Cir. 2011) (“A multiple conspiracy instruction is not
required when a defendant ‘stands trial alone’ because ‘there is no problem of
spillover.’” (quoting United States v. Anguiano, 873 F.2d 1314, 1318 (9th Cir.
1989))). Similarly, no specific unanimity instruction was required because there
was no genuine possibility of jury confusion in this case; only two defendants were
charged and the facts were straightforward. Cf. United States v. Lapier, 796 F.3d
3
The same is true for Tejeda’s other evidentiary challenges.
5
1090, 1096 (9th Cir. 2015). Accordingly, the court did not commit plain error by
failing to give either instruction.
4. Tejeda’s cumulative error claim also fails, as the aforementioned
alleged errors—aside from the special verdict form for Count Two—were either
not error or were harmless.
5. Tejeda’s challenge to the district court’s denial of his motion for a
new trial under Federal Rule of Criminal Procedure 33 also fails. First, the district
court did not abuse its discretion in denying Tejeda’s motion on the basis of newly
discovered evidence, United States v. Hinkson, 585 F.3d 1247, 1264 (9th Cir.
2009) (en banc), because the evidence to which Tejeda pointed had come to light at
trial, and therefore was not newly discovered. See United States v. Krasny, 607
F.2d 840, 842–43 (9th Cir. 1979). Second, to the extent that Tejeda’s motion for a
new trial was in fact a delayed suppression motion under Federal Rule of Criminal
Procedure 12(b)(3)(C), the district court did not abuse its discretion in finding that
the motion was not timely under Rule 12(b)(3) because it was not raised until after
trial. See United States v. Restrepo-Rua, 815 F.2d 1327, 1329 (9th Cir. 1987); see
also United States v. Guerrero, 921 F.3d 895, 898 (9th Cir. 2019).
6. The district court plainly erred in imposing three special conditions of
supervised release in its written judgment without providing notice or including
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them in its oral sentencing, in contravention of Federal Rule of Criminal Procedure
32(i) and Tejeda’s right to be present at his sentencing. See United States v.
Napier, 463 F.3d 1040, 1043 (9th Cir. 2006). Accordingly, the district court
should provide proper notice to Tejda of any non-standard condition that it
contemplates imposing at resentencing.
7. Finally, the written judgment as to Count Five erroneously states that
Tejeda was convicted of both heroin and methamphetamine distribution, even
though he was convicted only of methamphetamine distribution. Accordingly, on
remand, we instruct the district court to strike the word “heroin” from the written
Count Five judgment.
AFFIRMED in part, REVERSED in part, sentence VACATED and
REMANDED.
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